Conclusion / Miscellaneous
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Morgan Stanley and New York: Assurance of Discontinuance Conclusion Miscellaneous
The Investigation and This Assurance
- F. This Assurance of Discontinuance concludes the Investigation by the Attorney General and any other action the Attorney General could commence against Morgan Stanley or its affiliates relating to the subject of the Investigation, provided however, that excluded from and not covered by this Paragraph F are any claims Stanley by the Attorney General arising from or relating to the "Agreement" provisions contained in this Assurance of Discontinuance.
- G. Nothing herein shall preclude New York State, or its departments, agencies, boards, commissions, authorities, political subdivisions and corporations, other than the New York State Attorney general and only to the extent set forth in paragraph F above (collectively, "State Entities") and the officers, agents or employees of State Entities from asserting any claims Stanley, cause of action, or applications for compensatory, nominal and/or punitive damages, administrative, civil or criminal, or injunctive relief against Morgan Stanley or its affiliates, or the current or former directors, officers or employees of Morgan Stanley or its affiliates arising from or relating to the subject of the investigation.
- H. For any person or entity not a party hereto, this Assurance of Discontinuance does not prohibit, limit or create: (1) any private rights or remedies against Morgan Stanley; (2) liability of Morgan Stanley; or (3) defenses of Morgan Stanley to any claims Stanley. Nothing herein shall be construed to prohibit the use of any e-mails or other documents of Morgan Stanley or of others.
No Disqualifications
- I. This Assurance of Discontinuance is not intended by the Attorney general to subject any Covered Person to any disqualification under the laws of any state, the District of Columbia or Puerto Rico (collectively, "State"), including, without limitation, any disqualifications from relying upon the State registration exemptions or State safe harbor provisions. "Covered Person" means Morgan Stanley, or any of its officers, directors, affiliates, current or former employees, or other persons that would otherwise be disqualified as a result of the Orders (as defined below).
- J. The SEC Final Judgement, the NYSE Stipulation and Consent, the NASD Letter of Acceptance, Waiver and Consent, this Assurance of Discontinuance and the order of any other State in related proceedings against Morgan Stanley (collectively, the "Orders") shall not disqualify any Covered Person from any business that they otherwise are qualified, licensed or permitted to perform under applicable law of Sate of New York and any qualifications from relying upon the State of New York's registration exemptions or safe harbor provisions that arise from the Orders are hereby waived.
Other Provisions
- K. This Assurance of Discontinuance and any dispute related thereto shall be governed by the laws of the State of new York without regard to any choice of law principles.
- L. No failure or delay by the Attorney General in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided herein shall be cumulative.
- M. For a period of five years from the date of this Assurance of Discontinuance, Morgan Stanley, its officers, directors, agents, affiliates, servants, employees, attorneys, and those persons in active concert or participation with them, and each of them, shall not destroy, mutilate, conceal, alter, or dispose of (a) any research distributed by Morgan Stanley during the relevant period identified in paragraph 3 of this Assurance of Discontinuance ("Relevant Period"); (b) documents sufficient to identify all customers who bought or sold equity securities of the issuers as to which Morgan Stanley issued research during the relevant Period (the "Transactions"), including but not limited to documents sufficient to identify the dates, amounts, and prices of the Transactions; (c) documents sufficient to identify which customers received which research distributed by Morgan Stanley during the Relevant Period; (d) order entry information sufficient to identify whether the transactions were solicited by Morgan Stanley; (e) documents sufficient to identify the publicly-traded companies for which Morgan Stanley sought to provide, was engaged to provide, or did provide investment banking services during the relevant Period; and (f) any and all written (including electronic) communication, including communications to and from customers and intra-firm communications, related to Morgan Stanley's investment banking and equity research operations during the relevant Period; provided, however, that Morgan Stanley need not retain duplicate identical copies of public documents filed with the Securities and Exchange Commission or any other regulatory authority.
- N. Morgan Stanley enters into this Assurance of Discontinuance voluntarily and represents that no threats, offers, promises, or inducements of any kind has been made by the Attorney General or any member, officer, employee, agent, or representative of the Attorney General to induce Morgan Stanley to enter into this Assurance of Discontinuance.
- O. Morgan Stanley agrees not to take any action or to make or permit to be made any public statement denying, directly or indirectly, any finding in this Assurance of Discontinuance or creating the impression that this Assurance of Discontinuance is without factual basis. Nothing in this Paragraph affects Morgan Stanley's testimonial obligations or right to take legal or factual positions in defense of litigation or in defense of other legal proceedings in which the Attorney General is not a party.
- P. This Agreement shall be binding upon Morgan Stanley and its successors and assigns. Further, with respect to all matters referred to in Paragraphs A and B on page 23 thereof and all future obligations, responsibilities, undertakings, commitments, limitations, restrictions, events, and conditions, the terms "Morgan Stanley" and "Morgan Stanley's" as used herein shall include Morgan Stanley's successors and assigns (which, for these purposes, shall include a successor or assign to Morgan Stanley's investment banking and research operations, and in the case of an affiliate of Morgan Stanley, a successor or assign to Morgan Stanley's investment banking or research operations).
WHEREFORE, the following signatures are affixed hereto on the dates set forth below.
Dated: April 21, 2003MORGAN STANLEY & CO. INCORPORATED
By: DONALD G. KEMPF, JR, ESQ.
Authorized Signatory
Dated: April 21, 2003
ALEXANDER DIMITRIEF, ESQ.
Kirkland & Ellis
153 east 53rd Street
new York, New York 10022
Counsel for Morgan Stanley & Co. Incorporated
Dated: 4/24, 2003
ELIOT SPITZER, ESQ.
Attorney general of the State of New York
CORPORATE ACKNOWLEDGMENT
STATE OF NEW YORKCOUNTY OF NEW YORK
On the 21st day of April, 2003, before me personally came Donald G. Kempf, Jr., known to me, who, being sworn by me, did depose and say that he resides at 1965 Broadway, New York, New York; that he is the authorized signatory for Morgan Stanley & Co. Incorporated, the corporation described in and which executed the foregoing Assurance of Discontinuance; that he knows the seal of the corporation; that the seal affixed to the foregoing Assurance of Discontinuance is such corporate seal; that it was so affixed by order of the corporation's board of directors, and that he signed his name thereto by like order.
Signed: Theresa A. PilosiNotary Public
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